Waterloo/Cedar Falls Courier v. HAWKEYE CC

• Decision Date: 12 June 2002
• Docket Number: No. 00-1585.,00-1585.
• Citation: 646 N.W.2d 97
• Parties: WATERLOO/CEDAR FALLS COURIER, Appellant, v. HAWKEYE COMMUNITY COLLEGE, Willie Culpepper, Malcolm Mcgregor, Ruth Niemann, Luane Lorenzen, Mark Birdnow, Leroy L. Hoff, Harold Brock, Loren Steimel, and Ervin A. Dennis, Members of the Board of Trustees, Appellees. Saul Shapiro and Nancy Raffensperger-Newhoff, Plaintiffs, v. Iowa District Court for Black Hawk County, Defendant.
• Court: Iowa Supreme Court

646 N.W.2d 97

WATERLOO/CEDAR FALLS COURIER, Appellant, v. HAWKEYE COMMUNITY COLLEGE, Willie Culpepper, Malcolm Mcgregor, Ruth Niemann, Luane Lorenzen, Mark Birdnow, Leroy L. Hoff, Harold Brock, Loren Steimel, and Ervin A. Dennis, Members of the Board of Trustees, Appellees.

Saul Shapiro and Nancy Raffensperger-Newhoff, Plaintiffs, v. Iowa District Court for Black Hawk County, Defendant.

No. 00-1585.

Supreme Court of Iowa.

June 12, 2002.

David H. Correll of Correll, Sheerer, Benson, Engels, Galles & Demro, PLC, Cedar Falls, for appellant.

Michael A. Giudicessi and William J. Hunnicutt of Faegre & Benson LLP, Des Moines, for appellant and certiorari plaintiffs.

Matthew G. Novak and Thad J. Collins of Pickens, Barnes & Abernathy, Cedar Rapids, for appellees.

STREIT, Justice.

A local community college wants newspaper editors to tell who ratted them out. The editors stand firm and would be solaced by the words of a past newsperson:

If your editorial writer ... "takes the fence," thinking of the dangers of antagonizing somebody or other, including the publisher's wife, he can't write anything worth reading and it is not worth while hiring him...."

H.L. Mencken, A Gang of Pecksniffs 199 (Theo Lippman Jr. ed., Arlington House, 1975).

The Waterloo/Cedar Falls Courier filed a lawsuit against Hawkeye Community College for alleged violations of the Open Meetings Act. After the Courier filed suit, two of its editors spoke with unidentified people present at the meetings in which the Board allegedly violated the open meetings law. Now, the College wants to know who talked and argues the editors must reveal their sources. Because we find the sought-after material is not necessary for the College's defense and the material could be obtained from other non-privileged sources, we reverse the district court's order for an in camera inspection of the information.

I. Background and Facts

This is an interlocutory appeal and a petition for writ of certiorari arising from an Open Meetings Act case filed by Waterloo/Cedar Falls Courier against Hawkeye Community College and individually named members of the Board of Trustees. The Courier alleged the Board conducted an improper closed-session meeting in violation of Iowa Code chapter 21 (1999). In particular, the Courier argues the Board violated the Open Meetings Act by conducting a closed-session meeting regarding the competency of the president of the College. See Iowa Code § 21.5(1)(i). The Courier further alleged the Board was required to comply with the Open Meetings Act, contending the closed meeting was not necessary to prevent needless and irreparable injury to the president's reputation. See id. The Board denied these allegations claiming it was not required to comply with the Open Meetings Act because it conducted a closed-session meeting for the purpose of discussing strategy in matters relating to employment conditions of a College employee who is not covered by a collective bargaining agreement. See id. §§ 21.9, 20.9.

On two separate occasions, the Board held its regularly scheduled meetings. At one of these meetings, the Board chairman made a motion to change the meeting to a closed session under Iowa Code section 21.9, rather than under Iowa Code section 20.17(3) as had been announced in the agenda. The second meeting was also closed. These two closed sessions led to the Board's firing the president of the College. The Courier filed suit against the Board claiming the College failed to comply with the Open Meetings Act. After filing suit, two of the Courier's editors talked with two people who were present at the closed sessions. The editors promised the informants they would not reveal their identities or the content of the discussions.

The Board began discovery by deposing the editors. During the depositions, both editors refused to identify the people to whom they spoke. The editors refused to reveal the information they received from the informants or release their interview notes to the Board. The Board moved to compel the editors to reveal the informants' identities, the information disclosed by the informants, and the journalists' notes from the interviews. The district court entered an order compelling the editors to reveal to the district court, in camera, all of the information the editors received in return for their promise of confidentiality, "including names of the persons and statements by those persons." In denying the Courier's motion to reconsider the district court stated, the defendants

have to show that the intended evidence is relevant, but they have no way of obtaining the evidence. That is why the court chose the most conservative method available to it by ordering the evidence to be submitted to the court for an in camera hearing.

The Courier filed an application for an interlocutory appeal with this court. The individual editors then filed a petition for writ of certiorari in the supreme court. We granted both and consolidated the proceedings for purposes of appeal.

II. Scope of Review

Even though constitutional issues are involved, our review of the trial court's ruling on the discovery request is for abuse of discretion. Bousman v. Iowa Dist. Ct., 630 N.W.2d 789, 796 (Iowa 2001). A reversal of a discovery ruling is warranted when the grounds underlying a district court order are clearly unreasonable or untenable. Id. (citing State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)). We will also reverse upon a finding the trial court erroneously interpreted a discovery rule. Id. (citing Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)). "[A] court has no discretion to issue a discovery order that lacks factual support or is in contravention of governing constitutional or statutory provisions." Id.

On appeal, we also consider the editors' original petition for writ of certiorari. A writ of certiorari lies where the trial court acted illegally or otherwise exceeded its jurisdiction. State Pub. Defender v. Iowa Dist. Ct., 633 N.W.2d 280, 282 (Iowa 2001). "`Illegality exists when the court's findings lack substantial evidentiary support, or when the court has not properly applied the law.'" Id. (quoting Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998)). Therefore, our review of the district court's actions is for correction of errors of law. Id.

III. The Merits

The Courier and its editors argue the College failed to establish the criteria articulated in Lamberto v. Bown, 326 N.W.2d 305 (Iowa 1982). In particular, the Courier contends the College failed to prove: (1) it had a compelling need for the information; and (2) it exhausted alternative, non-privileged sources for the information. The Courier also asserts the district court effectively concluded the Courier waived its constitutionally-based reporter's privilege through its initiation of the open meetings action against the College. The district court ordered an in camera inspection to determine the relevancy of the evidence— "a procedure `borne of a paradox—the need to see evidence in order to determine whether the evidence can be seen.'" Lamberto, 326 N.W.2d at 308 (quoting In re Farber, 78 N.J. 259, 394 A.2d 330, 337 (N.J.1978),cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978)). We must determine whether the trial court based its in camera discovery order upon unreasonable grounds. Before we turn to this central issue, we briefly address two arguments raised by the College. The College first asserts the reporter's privilege does not apply in this case. It then argues if we find the privilege applies, the College is still entitled to the material as the Courier waived the editors' privilege.

A. Applicability of the Reporter's Privilege

In the trial court's order compelling in camera inspection, the court ruled on whether the Courier was eligible for the shield afforded by the reporter's privilege. The court stated, "This record clearly supports the fact that the plaintiff is a covered party and is entitled to the shield...." The College in its appellate brief argued,

it remains entirely unclear whether these editors were acting as part of the "news gathering process" or simply attempting to gather discovery for the pending lawsuit.... If the district court committed any error at all in resolving this issue it was assuming the Courier established the threshold showing for the privilege.

The College has not at any point specifically challenged the trial court's finding that the editors and the information they hold qualify for protection under the reporter's privilege. Though the district court did not specifically rule on the issue of whether the editors were engaged in the newsgathering process, we assume the facts necessary to uphold the court's ruling. EnviroGas, L.P. v. Cedar Rapids/Linn County Solid Waste Agency, 641 N.W.2d 776, 781 (Iowa 2002). We must determine whether there is substantial evidence upon which the trial court based its ruling. Id.

In adopting the Iowa reporter's privilege, we stated that for a journalist to gain protection under this shield, a determination must be made "whether that party falls within the class of persons qualifying for the privilege." Lamberto, 326 N.W.2d at 309. The party must have been engaged in the newsgathering process. Bell v. City of Des Moines, 412 N.W.2d 585, 588 (Iowa 1987). Once a journalist satisfies this preliminary showing, the information sought is "presumptively privileged." Id. The burden then shifts to the party seeking the information to rebut the presumption. Id.

The editors in this case are entitled to the reporter's privilege as they are journalists. See Lamberto, 326 N.W.2d at 309 (there is a presumption the privilege applies if the resisting party is a member of the protected class). The editors are employees of the Courier newspaper. One of the Courier's reporters tried to attend the Board's meetings, but was excluded after the chairman moved for a closed session. The...